While speaking at a conference this year, I asked members of the Human Resources community to raise their hands if they routinely instructed employees not to discuss internal investigations. No surprise, most of the hands (maybe all of them) went up.
For many good reasons, most employers instruct employees to keep the fact of and contents of investigations confidential. For example, when investigations become public, employees often become less willing to come forward and discuss the nature of the investigation. Also, in most instances the nature of the investigation involves sensitive information, like a harassment complaint. Yet, the National Labor Relations Board (NLRB) has indicated that reasons such as these are not legally sufficient to tell employees to keep their mouths shut.
This past year, the NLRB reaffirmed its position in Banner Health System, 362 NLRB No. 137 (2015), holding that confidentiality in investigations is the exception, not the rule. The Board held:
“Employees have a Section 7 right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers. Such discussions are vital to employees’ ability to aid one another in addressing employment terms and conditions with their employer.”
The Board held that this right to engage in “concerted, protected activity,” as set out in Section 7 of the National Labor Relations Act, could only be restricted by an employer where the employer shows that it has a legitimate and substantial business justification that outweighs employees’ Section 7 rights. Specifically, the Board stated that such instances would include where the employer determines that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up.” The Board suggested there might be other circumstances that would justify a confidentiality instruction, but emphasized that a “more categorical approach, requesting confidentiality in any investigation into alleged sexual harassment, hostile work environment claim, charge of abuse, or similar alleged misconduct” is not permissible. Rather, “[o]nly if the [employer] determines that such a corruption of its investigation would likely occur without confidentiality is the [employer] then free to prohibit its employees from discussing these matters among themselves.”
The Board’s decision has been sharply criticized by those in the HR community. Nonetheless, to minimize the risks of entanglement in Board litigation, employers should consider removing any blanket policy or instruction from their investigatory written materials and procedures. If you can stomach it, employers should also train investigators to evaluate on a case-by-case basis whether confidentiality is truly needed based on objectively reasonable facts that suggest disclosure of information could corrupt the investigation. For those unwilling to adjust their policies, whether they have unionized employees or not, they just might end up with an unfair labor practice charge before the Board.